Himachal Pradesh High Court
Decided On: 11.03.2026 vs Keshav Ram on 11 March, 2026
2026:HHC:7497
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 150/2021
Decided on: 11.03.2026
.
Rasu & ors. .....Appellants
Versus
Keshav Ram .....Respondent
Coram
of
The Hon'ble Mr. Justice Romesh Verma, Judge.
Whether approved for reporting ?1 Yes
For the appellants:
rt Mr. Aryan Manta, Advocate, vice
Mr. Rakesh Manta, Advocate.
For the respondent: Mr. V S. Chauhan, Sr. Advocate with
Mr. Vikas Shyam, Advocate.
Romesh Verma, Judge
The present appeal arises out of the judgment and
decree, dated 08.07.2021 as passed by the learned District
Judge (Forests), Shimla, H.P. in C. A. No. 08/2019, whereby
the appeal preferred by the present appellants/defendants
has been ordered to be dismissed and the judgment and
decree dated 19.09.2016, as passed by the learned Civil
Judge (Jr. Div.), Court No.2, Rohru, District Shimla, H.P.
1
Whether reporters of Local Papers may be allowed to see the Judgment ?Yes
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have been affirmed whereby the suit filed by the plaintiff/
respondent for possession of the suit land was decreed.
2 Brief facts of the case are that the
.
plaintiff/respondent filed a suit in the Court of learned Civil
Judge (Junior Division), Court No.2, Rohru, on 18.11.2011
for possession of the suit land. It was averred in the plaint
that late Jamku, son of Late Jamalu, was the recorded
of
owner in possession of the land bearing Khasra No. 1042,
area measuring 2-06 along with other pieces of land as the
same was purchased by the deceased from one late Liaqui
rt
Ram, resident of Village Kindari. After the death of late Sh.
Jamku, necessary mutation of inheritance was attested in
favour of the plaintiff along with other co-sharers and the
same is reflected in the jamabandi for the year 2004-05.
3 It has been averred in the plaint that after
purchase of the suit land, the predecessor-in-interest of the
plaintiff became exclusive owner in possession of the suit
property. Earlier, suit land was shown as Khasra No. 1042,
during settlement operation, Khasra Nos. 1463, 1464 and
1465 have also been shown to be part of the original Khasra
number 1042. It has been further averred that till his death,
i.e. during the month of April, 2010, Jamku remained owner
in possession of the suit land and the revenue entries shown
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by the settlement staff is wrong and contrary to the spot.
After the death of Jamku, the defendants at the back of the
plaintiff forcibly and un-authorizedly took possession of the
.
suit land on the basis of the wrong revenue entries. When
wrong entries were detected, the predecessor-in-interest of
the defendants, Balku, was requested to hand over the
possession, he refused to do so. Therefore, under such
of
circumstances, suit for possession was filed by the plaintiff
seeking decree for vacant possession of the land bearing
Khasra Nos. 1463, 1464 and 1465 measuring 00-07-27
rt
hectares comprised in Khata Khatoni No. 192/452, situated
in Chak Jharkot, Tehsil Chirgaon, Distt. Shimla, H.P. with
further prayer that defendants be directed to demolish
temporary structure as raised over the suit land.
4 The suit was contested by the
defendants/appellants by raising preliminary objections qua
maintainability, cause of action, estoppel, locus standi, etc.
On merits, it was averred that the suit land never remained
in possession of Liaqui Ram. In the year 1954, defendants’
grandfather, namely, Sh. Nesru had taken Rs.40/- from
Liaqui Ram for marriage of Jamku. Thereafter, in the year
1958, the amount was refunded to Liaqui Ram from joint
fund of the family as the original defendant and father of the
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plaintiff were real brothers and family was joint. The
defendants specifically refuted claim of the plaintiff that
Jamku became exclusive owner in possession of the suit
.
property and on the contrary it was stated that Jamku never
remained in possession of the suit land. Plea was taken by
the defendants that the suit land is in continuous possession
of the defendants till date and the possession of the
of
defendants is open, long, continuous and without
interruption to the knowledge of the plaintiff, hence they have
acquired title with efflux of time and defendants have
rt
become owner by way of adverse possession.
5 Further, it has been averred in the written
statement that in order to avoid any conflict between the
family members, the plaintiff’s father and the original
defendant entered into family settlement on 25.12.1958 and
in the family settlement, suit land fell to the share of the
defendants and the separate possession of the suit land was
handed over to the defendants on the spot in pursuance to
such family arrangement. Entries showing the plaintiff and
other co-sharers to be owners of the suit land are wrong,
illegal, baseless and contrary to the spot . Therefore,
denying the title of the plaintiff, the defendants set up the
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plea of adverse possession and prayed for dismissal of the
suit filed by the plaintiff.
6 The plaintiff filed replication to the written
.
statement filed by the defendants and all the averments as
made in the plaint were reiterated.
7 The learned trial court on 16.05.2012 framed the
following issues:-
of
1. Whether a decree for vacant possession of the land
comprised in Khasra No. 1463, 1464 and 1465 Kita
3 measuring 00-07-27 hectares comprised in K.K.
rt
No.192/452 situated in Chak Jharkot be passed infavour of the plaintiff and against the defendants
as the same will be for the benefit of all the co-
owners, as prayed for? OPP.
2. Whether the defendant be directed to demolish the
temporary structure so raised over the land in suit
at his costs and in case he fails to do so the cost of
the same to be incurred in the said process may
also be recovered from the defendant, as prayed
for? OPP.
3. Whether the suit is not maintainable, as alleged?
OPD.
4. Whether no cause of action has accrued in favour of
plaintiff, as alleged? OPD.
5. Whether the plaintiff is estopped by his own acts,
conduct, deeds and acquiescence to file the present
suit, as alleged? OPD.
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6. Whether plaintiff has no locus standi
to file the present suit, as alleged? OPD.
7. Whether the suit is bad for non-joinder of necessary
parties, as alleged? OPP.
.
8. Whether the defendants had become owner of the
suit land by way of adverse possession, as
alleged? OPD.
9. Relief.
8 The learned trial court directed the parties to
of
adduce evidence in support of their contentions to
corroborate their respective case and ultimately, the learned
rt
trial court vide its judgment and decree dated 19.09.2016
decreed the suit of the plaintiff/respondent for possession
and it was held that the plaintiff is having valid, legal title to
the suit land and hence he is entitled to the possession of the
same. Further, the appellants/defendants were directed to
remove the temporary structure created on the suit land at
their own cost and in case they failed to do so, the cost of the
same was ordered to be recovered from them.
9 The defendants, feeling dissatisfied by the judgment
and decree, dated 19.09.2016, as passed by the learned trial
court, preferred an appeal before the learned first Appellate
Court on 13.06.2019, which came to be dismissed vide
judgment and decree dated 08.07.2021.
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10 Now, aggrieved by the aforesaid judgments and
decrees, the appellants/defendants have preferred the
present regular second appeal, in which notices were issued
.
to the respondent/plaintiff on 04.09.2021 and pursuant to
that learned counsel for the respondent put in appearance
and thereafter the case was listed for admission hearing.
11 It is contended by Mr. Aryan Manta, Advocate,
of
vice Mr. Rakesh Manta, appearing for the defendants/
appellants that the judgments and decrees as passed by the
learned courts below are perverse and without any evidence.
He submits
rt that the learned courts below have not
appreciated the oral as well as documentary evidence on
record and has erred in decreeing the suit filed by the
plaintiff/respondent for possession. He further submits that
the learned courts below have misconstrued and
misinterpreted documentary evidence placed on record,
whereby the defendants/appellants were able to establish
plea of adverse possession over the suit land.
12 On the other hand, Mr. Virender Singh Chauhan,
learned Senior Advocate, duly assisted by Mr. Ajay Singh
Kashyap, Advocate, appearing for the plaintiff/respondent,
has defended the judgments and decrees passed by the
learned courts below. He submits that the case as set up by
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the plaintiff is supported by cogent and authentic
evidence placed on record, therefore, findings as returned by
the courts below are legal, valid and sustainable and do not
.
call for any interference. He further submits that the
findings as returned by the learned courts below are finding
of fact, therefore, no question of law much less substantial
question of law arises in the instant appeal and the same
of
deserves to be dismissed.
13 I have heard the learned counsel for the parties
and have also gone through the material available on record.
14
rt
With the consent of the parties, the case is heard
finally at the admission stage.
15 It is the case of the plaintiff/respondent that his
predecessor-in-interest, Jamku, was the owner of the suit
property and for that purpose, he has placed on record a
copy of jamabandi for the year 2004-05, which shows Jamku
to be owner of the suit property comprised in Khasra
Nos.1463, 1464 and 1465. Further, copy of the mutation,
has also been exhibited as Ext.PW1/C, whereby Jamku has
been shown to be owner of the suit land. Ext. PW1/D is copy
of the jabamandi for the year 1980-81, which also reflects
Jamku to be owner in possession of the suit property.
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16 The controversy between the parties arose
when in the column of the possession, the defendants were
entered as per jamabandi for the year 2004-05, wherein
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original defendant, namely, Balku, son of Jamlu, was shown
to be in possession of the suit land.
17 The plaintiff has primarily based his case on the
basis of the title and it is the case of the plaintiff that in the
of
the month of April 2010 when his predecessor-in-interest
expired, the defendants illegally tresspassed over the suit
land and took its forcible possession.
18 As
rt regards the defendants/appellants, their
defence in the instant case is primarily based on the adverse
possession. In the written statement, plea of adverse
possession has been set up by the defendants and apart from
that, plea has also been taken that the suit land was given to
the defendants in the family partition, which took place
between the family members of the parties on 25.12.1958,
thereafter they are in possession of the suit land.
19 It has been alleged by the defendants/appellants
that the suit land never remained in possession of Liaqui
Ram. In the year 1954, Nesru, grandfather of the original
defendant, had taken Rs.40/- from Liaqui Ram as money was
required for the marriage of Jamku and due to such reason
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in the revenue record name of Liaqui Ram exists.
Thereafter, in the year 1958, the amount was refunded to
Liaqui Ram from joint family funds.
.
20 In common parlance, once the
defendants/appellants have set up plea of adverse
possession, it is presumed that the defendants have
accepted title of the plaintiff/respondent. However, the
of
defendants/respondents have set up their title on the basis
of the family partition alleged to have taken place between the
family members on 25.12.1958.
21
rt
As noticed above, the defendants/respondents
have tried to project their case on the basis of the ownership
by alleging that in the family partition, the suit land was
given to them in the year 1958 and the defendants were put
in possession in the said year itself, however, from the
perusal of the revenue record, said story as projected in the
written statement is falsified since the defendants have relied
primarily on the copy of missal haquiat bandobast jadid,
which is based upon the record prepared during the
settlement operation. On the one hand, plea has been set up
that they are in possession of the suit land since 1958 and
on the other hand, they are relying upon the record prepared
during the recent settlement.
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22 The Hon’ble Supreme Court in its catena of
decisions has categorically held that the plea of title and
adverse possession is mutually destructive and inconsistent
.
and the latter does not begin to operate until the former is
renounced.
23 The Hon’ble Supreme Court in Narasamma and
others vs. A. Krishnappa (dead) through Legal
of
Representatives, (2020) 15 SCC 218, has held as under:-
“33. In Karnataka Board of Wakf case case, it has
been clearly set out that a plaintiff filing a title over
rt
the property must specifically plead it. When such a
plea of adverse possession is projected, it is inherentin the nature of it that someone else is the owner of
the property. In that context, it was observed in para
12 that “….the pleas on title and adverse possessionare mutually inconsistent and the latter does not
begin to operate until the former is renounced.”
24 This Court also in case titled as Surinder Prasad
and another vs. Madhur Green and another, 2019(1) Civil
Court Case, 182 has held as under:
“9. At the outset, it may be observed that the
defendants had even raised the plea of adverse
possession and obviously they acknowledged and
attorned to the title of the plaintiff. It is more than
settled that whenever the plea of adverse possession
is projected, inherent in the plea is that someone else
was the owner of the property. The pleas on title and::: Downloaded on – 17/03/2026 20:29:51 :::CIS
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adverse possession are mutually inconsistent and
the latter does not begin to operate until the former is
renounced.”
.
25 In order to establish adverse possession, the
defendants/appellants have examined Roshan Lal as DW1,
who, in his examination-in-chief tendered an affidavit
Ext.DW1/A, wherein in para 3 thereof he has stated that on
of
25.12.1958 in a family partition the suit land was given to his
father and thereafter he along with other defendants is in
rt
peaceful possession of the suit property. However, in para 4
thereof, he has taken contrary stand, whereby he has stated
that the defendants are residing over the suit land for the
last 30 years. Neither the ingredients of the adverse
possession have been spelt out nor the same have been tried
to be proved. In his cross-examination, there is an
admission on the part of DW1 that Jamku is owner in
possession of the suit land.
26 DW2, Negi Ram, has also tendered his affidavit,
Ext. DW2/A in his examination-in-chief. In para 2 of his
affidavit, he has submitted that the defendants are owners in
possession of the suit property for the last more than 30
years in a peaceful manner. Except this, there is no
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averment qua plea of adverse possession as raised by
the defendants.
27 Nagru Ram appeared in the witness box as DW3,
.
who has also tendered in evidence his affidavit, Ext. DW3/A,
wherein he has deposed on the same and similar lines as
having been deposed by DW2 Negi Ram.
28 DW4 Lakhi Raj while tendering his affidavit, Ext.
of
DW4/A in his examination-in-chief has also stated on the
same lines as has been stated by DW2 and DW3.
29 None of the defendants’ witnesses has stated that
rt
on which date, the defendants/appellants came in possession
of the suit land and whether their alleged hostile possession
was in the knowledge of the true owner and whether the
said possession was uninterrupted, hostile and what is
continuity of the said possession. Said ingredients as
required to acquire ownership have neither been pleaded
nor proved by the defendants/appellants.
30 Moreover, in order to prove ingredients of adverse
possession, the Hon’ble Supreme Court has held that in
order to prove ownership on the basis of the adverse
possession, said plea has to be specifically pleaded and
proved.
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31 It has to be established by the party,
who claims title on the basis of the adverse possession that
on what date the party came into possession of the suit
.
property. It has to be established by the defendants what
was the nature of their possession over the suit land and
whether said factum of possession was well within the
knowledge of the true owner i.e. plaintiff/respondent. The
of
defendants/appellants were required to prove how long is
their possession on the suit land; whether the same is
continuous or not; and whether the possession on the suit
rt
land was open, hostile and undisturbed.
32 The Hon’ble Supreme Court has laid down the
exposition of law qua adverse possession in the following
manner:
(i) In T. Anjanappa and others vs.
Somalingappa and another, (2006) 7 SCC 570,
the Hon’ble Supreme Court held as under:
“12. The concept of adverse possession
contemplates a hostile possession i.e. a
possession which is expressly or impliedly in
denial of the title of the true owner. Possession to
be adverse must be possession by a person who
does not acknowledge the other’s rights but
denies them. The principle of law is firmly::: Downloaded on – 17/03/2026 20:29:51 :::CIS
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established that a person who bases his title
on adverse possession must show by clear and
unequivocal evidence that his possession was
hostile to the real owner and amounted to denial.
of his title to the property claimed. For deciding
whether the alleged acts of a person constituted
adverse possession, the animus of the person
doing those acts is the most crucial factor.
Adverse possession is commenced in wrong and
is aimed against right. A person is said to holdof
the property adversely to the real owner when
that person in denial of the owner’s right
excluded him from the enjoyment of his property.
13.
rt Possession to be adverse must be
possession by a person who does not
acknowledge the other’s rights but denies them.
“24. It is a matter of fundamental
principle of law that where possession can
be referred to a lawful title, it will not be
considered to be adverse. It is on the basisof this principle that it has been laid down
that since the possession of one co- owner
can be referred to his status as co-owner, it
cannot be considered adverse to other co-
owner.
14. Adverse possession is that form of
possession or occupancy of land which is
inconsistent with the title of the rightful ownerand tends to extinguish that person’s title.
Possession is not held to he adverse if it can be
referred to a lawful title. The person setting up
adverse possession may have been holding
under the rightful Owner’s title e.g. trustees,
guardians, bailiffs or agents. Such persons
cannot set up adverse possession.
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"Adverse possession" means a
hostile possession which is expressly or
impliedly in denial of title of the true owner.
Under Article 65 of the Limitation Act, burden.
is on the defendants to prove affirmatively. A
person who bases his title on adverse
possession must show by clear and
unequivocal evidence i.e. possession washostile to the real owner and amounted to a
denial of his title to the property claimed. Inof
deciding whether the acts, alleged by a
person, constitute adverse possession, regard
must be had to the animus of the person doing
those acts which must be ascertained from the
rt
facts and circumstances of each case. The
person who bases his title on adversepossession, therefore, must show by clear and
unequivocal evidence i.e. possession was
hostile to the real owner and amounted to adenial of his title to the property claimed.
Where possession could be referred to a
lawful title, it will not be considered to be
adverse. The reason being that a personwhose possession can be referred to a lawful
title will not be permitted to show that hispossession was hostile to another’s title. One
who holds possession on behalf of another
does not by mere denial of that other’s title
make his possession adverse so as to give
himself the benefit of the statute of limitation.
Therefore, a person who enters into
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another of that title by pretending that he
had no title at all.
15. An occupation of reality is inconsistent
with the right of the true owner. Where a person.
possesses property in a manner in which he is not
entitled to possess it, and without anything to
show that he possesses it otherwise than an
owner (that is, with the intention of excluding allpersons from it, including the rightful owner), he is
in adverse possession of it. Thus, if A is inof
possession of a field of B’s, he is in adverse
possession of it unless there is something to show
that his possession is consistent with a
recognition of B’s title. (See Ward v. Carttar (1866)
rt
LR 1 Eq.29). Adverse possession is of two kinds,
according as it was adverse from the beginning,or has become so subsequently. Thus, if a mere
trespasser takes possession of A’s property, and
retains it against him, his possession is adverseab initio. But if A grants a lease of land to B, or B
obtains possession of the land as A’s bailiff, orguardian, or trustee, his possession can only
become adverse by some change in his position.
Adverse possession not only entitled the adverse
possessor, like every other possessor, to beprotected in his possession against all who cannot
show a better title, but also, if the adverse
possessor remains in possession for a certain
period of time produces the effect either of barring
the right of the true owner, and thus converting
the possessor into the owner, or of depriving the
true owner of his right of action to recover his
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ignorant of the adverse possessor being in
occupation.
16. xxx xxx xxx
17. According to Pollock, “In common speech a
.
man is said to be in possession of anything of
which he has the apparent control or from the use
of which he has the apparent powers of excluding
others”.
18 & 19 xxx xxx xxx
20. It is well recognized proposition in law
of
that mere possession however long does not
necessarily means that it is adverse to the true
owner. Adverse possession really means the
rt hostile possession which is expressly or impliedly
in denial of title of the true owner and in order to
constitute adverse possession the possession
proved must be adequate in continuity, in
publicity and in extent so as to show that it is
adverse to the true owner. The classical
requirements of acquisition of title by adverse
possession are that such possession in denial of
the true owner’s title must be peaceful, open and
continuous. The possession must be open and
hostile enough to be capable of being known by
the parties interested in the property, though it is
not necessary that there should be evidence of the
adverse possessor actually informing the real
owner of the former’s hostile action.”
(ii) In Chatti Konatri Rao and others vs.
Palle Venkata Subba Rao, (2010) 14 SCC 316,
the Hon’ble Apex Court further held as under:
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“13. What facts are required to prove adverse
possession have succinctly been enunciated by
this Court in the case of Karnataka Board of.
Wakf vs. Government of India and Ors. (2004) 10
SCC 779. It has also been observed that a
person pleading adverse possession has no
equities in his favour and since such a person istrying to defeat the rights of the true owner, it is
for him to clearly plead and establish necessaryof
facts to establish his adverse possession.
Paragraph 11 of the judgment which is relevant
for the purpose reads as follows:
“11. In the eye of the law, an owner would
rt
be deemed to be in possession of a
property so long as there is no intrusion.
Non-use of the property by the owner evenfor a long time won’t affect his title. But
the position will be altered when another
person takes possession of the property
and asserts a right over it. Adversepossession is a hostile possession by
clearly asserting hostile title in denial of
the title of the true owner. It is a well-
settled principle that a party claimingadverse possession must prove that his
possession is “nec vi, nec clam, nec
precario”, that is, peaceful, open andcontinuous. The possession must be
adequate in continuity, in publicity and in
extent to show that their possession isadverse to the true owner. It must start
with a wrongful disposition of the rightful
owner and be actual, visible, exclusive,
hostile and continued over the statutory
period. (See S.M. Karim v. Bibi Sakina AIR
1964 SC 1254, Parsinni v. Sukhi (1993) 4
SCC 375 and D.N. Venkatarayappa v.
State of Karnataka (1997) 7 SCC 567)
Physical fact of exclusive possession and
the animus possidendi to hold as owner in
exclusion to the actual owner are the most
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in cases of this nature. Plea of
adverse possession is not a pure question
of law but a blended one of fact and law.
Therefore, a person who claims adverse
possession should show: (a) on what date
he came into possession, (b) what was the.
nature of his possession, (c) whether the
factum of possession was known to the
other party, (d) how long his possession
has continued, and (e) his possession was
open and undisturbed. A person pleadingadverse possession has no equities in his
favour. Since he is trying to defeat the
rights of the true owner, it is for him to
clearly plead and establish all factsof
necessary to establish his adverse
possession. [Mahesh Chand Sharma (Dr.)
v. Raj Kumari Sharma
14. In view of the several authorities of this
rt
Court, few whereof have been referred above,
what can safely be said that mere possessionhowever long does not necessarily mean that it is
adverse to the true owner. It means hostile
possession which is expressly or impliedly indenial of the title of the true owner and in order
to constitute adverse possession the possession
must be adequate in continuity, in publicity andin extent so as to show that it is adverse to the
true owner. The possession must be open and
hostile enough so that it is known by the parties
interested in the property. The plaintiff is boundto prove his title as also possession within 12
years and once the plaintiff proves his title, the
burden shifts on the defendant to establish that
he has perfected his title by adverse possession.
Claim by adverse possession has two basic
elements i.e. the possession of the defendant
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defendant must continue to remain in
possession for a period of 12 years thereafter.
15. Animus possidendi as is well known a
requisite ingredient of adverse possession. Mere.
possession does not ripen into possessory title
until possessor holds property adverse to the title
of the true owner for the said purpose. Theperson who claims adverse possession is
required to establish the date on which he came
in possession, nature of possession, the factumof
of possession, knowledge to the true owner,
duration of possession and possession was open
rt and undisturbed. A person pleading adverse
possession has no equities in his favour as he is
trying to defeat the rights of the true owner and,hence, it is for him to clearly plead and establish
all facts necessary to establish adverse
possession. The courts always take unkind viewtowards statutes of limitation overriding property
rights. Plea of adverse possession is not a pure
question of law but a blended one of fact andlaw.”
33 The essential ingredients, which have been laid
down by the Hon’ble Supreme Court, in the present case,
have neither been spelt out nor proved by the
defendants/appellants. The learned courts below have rightly
held that the defendants/appellants though have taken plea
of adverse possession, but the grounds to prove the same
have not been established.
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34 The learned courts below have rightly come
to the conclusion that the defendants have failed to
establish their title on the basis of adverse possession,
.
therefore, the findings as returned by the learned courts
below are legal, valid and sustainable and do not call for any
interference.
35 As regards the plea raised by the defendants qua
of
the family partition, except the oral testimony, no evidence
has been placed on record to establish that in the family
partition, the suit land was given to the predecessor in
rt
interest of the defendants. No document has been placed on
record to establish the family partition, therefore, the findings
qua the same as rendered by the learned courts below are
also sustainable and do not call for any interference.
36 The Hon’ble Supreme Court in catena of judgments
has held that the first appellate is the final court of the fact.
No doubt, second appellate court exercising the power under
Section 100 CPC can interference with the findings of fact on
limited grounds such as – (a) where the finding is based on
inadmissible evidence; (b) where it is in ignorance of the
relevant admissible evidence; (c) where it is based on
misreading of evidence; (d) where it is perverse, but that is
not case in hand.
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23
37 The Hon’ble Supreme Court while dealing with
scope of interference under Section 100 in Hero Vinoth
(minor) vs. Seshammal, (2006) 5 SCC 545 has held as
.
under:
18. It has been noted time and again that without
insisting for the statement of such a substantialquestion of law in the memorandum of appeal and
formulating the same at the time of admission, the High
Courts have been issuing notices and generallyof
deciding the second appeals without adhering to the
procedure prescribed under Section 100 of the CPC. It
has further been found in a number of cases that no
rt
efforts are made to distinguish between a question of
law and a substantial question of law. In exercise of thepowers under this section in several cases, the findings
of fact of the first appellate court are found to have been
disturbed. It has to be kept in mind that the right ofappeal is neither a natural nor an inherent right
attached to the litigation. Being a substantive statutory
right, it has to be regulated in accordance with law inforce at the relevant time. The conditions mentioned in
the section must be strictly fulfilled before a second
appeal can be maintained and no court has the power
to add or to enlarge those grounds. The second appealcannot be decided on merely equitable grounds. The
concurrent findings of facts will not be disturbed by the
High Court in exercise of the powers under this section.
Further, a substantial question of law has to be
distinguished from a substantial question of fact. This
Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century
Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that :
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24
“The proper test for determining whether a
question of law raised in the case is substantial would,
in our opinion, be whether it is of general public
importance or whether it directly and substantially.
affects the rights of the parties and if so whether it is
either an open question in the sense that it is not finally
settled by this Court or by the Privy Council or by the
Federal Court or is not free from difficulty or calls fordiscussion of alternative views. If the question is settled
by the highest court or the general principles to beof
applied in determining the question are well settled and
there is a mere question of applying those principles or
that the plea raised is palpably absurd the question
would not be a substantial question of law.”
rt
19. It is not within the domain of the High Court to
investigate the grounds on which the findings were
arrived at, by the last court of fact, being the first
appellate court. It is true that the lower appellate court
should not ordinarily reject witnesses accepted by the
trial court in respect of credibility but even where it has
rejected the witnesses accepted by the trial court, the
same is no ground for interference in second appeal
when it is found that the appellate court has given
satisfactory reasons for doing so. In a case where from
a given set of circumstances two inferences of fact are
possible, one drawn by the lower appellate court will
not be interfered by the High Court in second appeal.
Adopting any other approach is not permissible. The
High Court will, however, interfere where it is found
that the conclusions drawn by the lower appellate court
were erroneous being contrary to the mandatory
provisions of law applicable or its settled position on the
basis of pronouncements made by the Apex Court, or
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25
was based upon inadmissible evidence or
arrived at by ignoring material evidence.
20. to 22 xx xx xx xx
23. To be “substantial” a question of law must be
.
debatable, not previously settled by law of the land or a
binding precedent, and must have a material bearing
on the decision of the case, if answered either way,
insofar as the rights of the parties before it are
concerned. To be a question of law “involving in the
case” there must be first a foundation for it laid in the
of
pleadings and the question should emerge from the
sustainable findings of fact arrived at by court of facts
and it must be necessary to decide that question of law
for a just and proper decision of the case. An entirely
rt
new point raised for the first time before the High Court
is not a question involved in the case unless it goes to
the root of the matter. It will, therefore, depend on the
facts and circumstance of each case whether a question
of law is a substantial one and involved in the case, or
not; the paramount overall consideration being the need
for striking a judicious balance between the
indispensable obligation to do justice at all stages and
impelling necessity of avoiding prolongation in the life of
any lis.”
38 The Hon’ble Supreme Court in Annamalai vs.
Vasanthi, 2025 INSC 1267, has held as follows:-
“16. Whether D-1 and D-2 were able to discharge the
aforesaid burden is a question of fact which had to be
determined by a court of fact after appreciating the
evidence available on record. Under CPC, a first
appellate court is the final court of fact. No doubt, a
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26
under Section 100 CPC can interfere with a finding
of fact on limited grounds, such as, (a) where the
finding is based on inadmissible evidence; (b) where it
is in ignorance of relevant admissible evidence; (c).
where it is based on misreading of evidence; and (d)
where it is perverse. But that is not the case here.
17. In the case on hand, the first appellate court, in
paragraph 29 of its judgment, accepted theendorsement (Exb. A-2) made on the back of a
registered document (Exb. A-1) after considering theof
oral evidence led by the plaintiff-appellant and the
circumstance that signature(s)/thumbmark of D-1 and
D-2 were not disputed, though claimed as one obtained
on a blank paper. The reasoning of the first appellate
rt
court in paragraph 29 of its judgment was not
addressed by the High Court. In fact, the High Court, inone line, on a flimsy defense of use of a signed blank
paper, observed that genuineness of Exb. A-2 is not
proved. In our view, the High Court fell in error here.
While exercising powers under Section 100 CPC, it
ought not to have interfered with the finding of factreturned by the first appellate court on this aspect;
more so, when the first appellate court had drawn itsconclusion after appreciating the evidence available on
record as also the circumstance thatsignature(s)/thumbmark(s) appearing on the document
(Exb.A-2) were not disputed. Otherwise also, while
disturbing the finding of the first appellate court, the
High Court did not hold that the finding returned by the
first appellate court is based on a misreading of
evidence, or is in ignorance of relevant evidence, or is
perverse. Thus, there existed no occasion for the High
Court, exercising power under Section 100 CPC, to::: Downloaded on – 17/03/2026 20:29:51 :::CIS
27
interfere with the finding of the first appellate
court regarding payment of additional Rs. 1,95,000 to
D-1 and D-2 over and above the sale consideration
fixed for the transaction.
.
18. Once the finding regarding payment of additional
sum of Rs.1,95,000 to D-1 and D-2 recorded by the first
appellate court is sustained, there appears no logical
reason to hold that the plaintiff (Annamalai) was notready and willing to perform its part under the contract
particularly when Rs. 4,70,000, out of totalof
consideration of Rs. 4,80,000, was already paid and,
over and above that, additional sum of Rs.1,95,000
was paid in lieu of demand made by D-1 & D-2. This
we say so, because an opinion regarding plaintiff’s
rt
readiness and willingness to perform its part under the
contract is to be formed on the entirety of proven factsand circumstances of a case including conduct of the
parties. The test is that the person claiming
performance must satisfy conscience of the court thathe has treated the contract subsisting with
preparedness to fulfil his obligation and acceptperformance when the time for performance arrives.”
39 As observed above, the Hon’ble Apex Court has
repeatedly held that the scope of interference under Section
100 CPC is limited and the interference will be in those cases
where the judgments are perverse and based on no evidence.
40 On perusal of the impugned judgments and
decrees, this court is of the opinion that the same are valid,
legal and sustainable in the eyes of law and no interference of
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28
any kind is required in the same. No question of law
much less the substantial question of law arises in the
present case.
.
41 No other point raised by the learned counsel for
the appellants.
42 In view of aforesaid discussions and for the
reasons stated hereinabove, there is no merit in this appeal
of
and the same is accordingly dismissed, leaving the parties to
bear their own costs. Pending application, if any, also stands
disposed of.
rt
11th March, 2026 (Romesh Verma)
(pankaj) Judge
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